Entrapped?

by Joel Smith & r & When Spokane mayor Jim West announced his leave of absence to the City Council last week, he cited the "news media hysteria " created by the Spokesman-Review's investigations and said he needed a chance to "gather my thoughts and prepare my defense of the false accusations leveled against me. "

But might he be preparing some offense, too?

Citizens and journalists have been abuzz with questions about the ethics of the Review's reporting since it broke the mayoral scandal on May 5. Some critics have questioned the paper's decision to hire a computer consultant to go undercover and talk up the mayor in an Internet chat room. Others have tried to connect the dots between the story and the still-fresh settlement of the River Park Square debacle. Others still just say it was a great story and the Review's tactics were fine.

But while local and national media outlets ply the paper with ethical questions, some suggest the paper might have a few legal questions to answer as well.

Could Mayor West sue the Review? For what? It would be a tough road, since public officials are among the least protected by law and newspapers are among the most protected.

But if it comes to that, perhaps defamation of character could be the foundation for a lawsuit. It's unlikely, though, according to some attorneys; one of the claims made by the paper (that West is bisexual) the mayor has already admitted to. And the most devastating of the claims -- that West may have sexually abused two boys in the mid-1970s -- probably won't ever be proven true or false. The statute of limitations for those alleged events has long passed, and the deposition that uncovered the allegations was aimed at Spokane County and former sheriff's deputy David Hahn, not West. If the mayor can find a way to conclusively clear his name, he might have a chance for a defamation claim, says one local attorney, but it's not probable.

Scandal-watchers have also been bandying about the word "entrapment, " referring to the newspaper's use of an undercover computer expert to confirm the mayor's online identity. But that's not quite right. Generally speaking, the paper may have indeed "entrapped " or "stung " West, but "it's not technically entrapment, " says Seattle attorney Judy Endejan, who practices media law. She says entrapment is a criminal defense, most often used by someone who believes that the government set them up. "I don't think you have a civil cause for entrapment, " she notes of the West case.

So the mayor, were he litigiously inclined -- and he has reportedly hired a lawyer -- likely couldn't sue the Review for "entrapment. " But some believe he might have a good case for invasion of privacy. Many suggest that's a longshot, too -- but if it were to get to that, the argument would probably come down to the state appeals court's 2001 decision in State of Washington v. Donald T. Townsend.

That case will sound familiar to West-gate enthusiasts. Donald Townsend believed he was talking in an online chat room with a 13-year-old girl named Amber -- who was actually a Spokane police detective. Townsend made a date with Amber to meet and have sex at a motel, and when he showed up the cops busted him for attempted second-degree rape.

In his appeal, Townsend contended that e-mail and chat room transcripts submitted as evidence against him were illegal, having been obtained against his permission. But the court disagreed, ruling that Townsend implied consent to the recording of his e-mails and dialogues by the detective, since everyone knows that e-mails are designed to be saved, and the chat program (ICQ) warns its users about "unauthorized exposure " before they sign up. So, said the court, Townsend had no legal right to consider the conversations private, the evidence was admissible, and Townsend went to jail.

But Spokane attorney and former city councilman Steve Eugster says there's one key difference that could work in Mayor West's favor, were he to sue. He points out that in the transcript of the conversations between West and the Review's cyber-spy, "West says, 'I want to go on this AOL Instant Messaging because things can't be recorded that way.' " Just saying that, says Eugster, shows that West intended for the conversations to be private and un-recorded, and that, unlike Donald Townsend, he didn't waive his right to confidentiality.

But others in the legal community disagree. Judy Endejan says that anyone yakking it up in an Internet chat room "would have a diminished expectation of privacy. " She also acknowledges, however, that she "can't predict how a judge or jury would come out on that one " if it came to the Townsend argument.

Bruce Johnson, another Seattle attorney specializing in media law, is more resolute. "The problem is on the Internet nobody knows if you're a dog or not ... [West] may have assumed he was talking to an 18-year-old. The fact that this guy might be 30 and named Bill doesn't really change the analysis. " He says an invasion of privacy claim wouldn't fly "in an Internet chat room [situation] because it's largely a public place. "

Review editor Steve Smith agreed when he told The Inlander, "We simply went to the public square and parked our bike and waited to see who would talk to us and what they would suggest. "

People may disagree with his coy characterization, but if Smith is right, the mayor may not be able to blame the Review for his troubles.

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